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The Vibrant Life of Indigenous Relics

NAIDOC WEEK 2021

Kellehers Australia always yearns for the significance of Aboriginal cultural heritage to go beyond archaeological relics and include Indigenous stories, songs and dances.  The heritage of a living culture deeply rooted in oral traditions from antiquity, lives alongside a vibrant contemporary lifestyle of mobile phones and Facebook pages.  Whilst this living culture in no way disparages the wonderful work of archaeologists, and the archaeological focus might be called ‘stones and bones’, where buried relics, artefacts and objects can imply a dead culture. 

Victoria’s 2016 amendments to the Aboriginal Heritage Act 2006 recognised what is called intangible heritage. They introduced a system for recording intangible heritage, including songs and stories, on the Aboriginal Cultural Heritage Register, and made it “an offence to use registered intangible heritage for commercial purposes without consent of the relevant registered owner.”[1]

Caselaw concerning the important intangible heritage provisions may be evolving.  Aunty Joy Murphy tells stories of her rich ‘intangible’ heritage in her award-winning books[2].  Watch this space into the future, as Australia moves strongly toward recognition of its wondrous living Aboriginal heritage, its stories and songs[3]. Listening to Indigenous stories ensures that all Australians are clearer in the shared task of Healing Country.

The cases considered in today’s NewsFlash both concern ‘stones and bones’. However, through them, Indigenous Australians give voice to the stories behind barely visible ancient earth mounds and travelling paths recognised via archaeological work.

Image 1: Riddells Road Earth Ring[4]

The Sunbury Rings are ancient earthwork formations at Sunbury, a satellite town of Naarm (Melbourne), approx. 40km from its CBD. 

Image 2: Aerial Map of three Sunbury Rings[5]

The Sunbury Rings are located on elevated land within a curve of Jackson’s Creek. Man-made, they date back at least 1,000 years.  Most Melbournians would not know that we have our own Stonehenge in the city fringe.

Also called the Wurundjeri Earth Rings, these Rings are said to have been created by the “continual scraping back of earth and grass from the circles centre.”[6] The ring formations include ‘large stoned and heaped soil’[7], with each ring generally around 10 meters in diameter.

There are five rings, with the first recorded in the late 1970s and the last in the 1990s.

The exact purpose or use of these Rings is, at present, not publicly known. Wurundjeri Elder, Dave Wandin says:

We believe that they were used for marriage ceremonies where men and women would get prepared separately.[8]

The Wurundjeri are revegetating the land occupied by the Rings to restore native grasses and plants. 

 

                  Image 3: Google Map of Sunbury[9]

Images: Revegetating of land by the Wurundjeri Tribe Council[10]

In 2015, VCAT considered the Rings.[11] The land on which they exist was within an area proposed for residential development by Canterbury Hills Pty Ltd.  The Hume Planning Scheme[12] required the development plan to ‘show, where appropriate … sites of … heritage significance’. VCAT confirmed that ‘heritage significance’ includes sites of Aboriginal cultural heritage significance.

A report by Canterbury Hills’ cultural consultant identified areas of cultural significance, including one of the Rings[13] and four sites Aboriginal archaeological sites recorded under the Archaeological and Aboriginal Relics Preservation Act 1972 (Archeology Act).” [14]

The Wurundjeri Tribe Land & Compensation Cultural Heritage Council Inc (Wurundjeri) spoke for the Rings:

“[Sunbury Ring 4 is] one of the most important Indigenous cultural landscapes in [Victoria]”[15]

The complex of five ceremonial earthen rings (of which Sunbury Ring 4 is part) remains an important spiritual place for contemporary Wurundjeri people.”[16]

Hume City Council argued that Canterbury Hills’ final development plan should not be approved until approval of the Cultural Heritage Management Plan (CHMP). Canterbury Hills claimed that[17] the estate had been surveyed for cultural heritage in 1984, 1999, 2001 and 2004 and that it was is unlikely that additional cultural heritage would be found. It told VCAT that the estate had been planned in consultation with the Wurundjeri and arrangements existed with them to monitor construction of each stage for the discovery of any additional cultural heritage. The Framework Plan, it said, incorporated the Sunbury Ring 4 into the estate in a manner that met Wurundjeri requirements.

VCAT accepted the developer’s argument.  It considered that Sunbury Ring 4 was the most significant known site on the estate but was not in the first seven stages of the development, or in a stage that would closely follow the seven stages. For this reason, it considered there was sufficient time to finalise the CHMP before a permit was granted for any stage affecting Sunbury Ring 4.

The Wurund’jeri were involved in an earlier 2005 case, that concerned adjoining Country of the Bunurong People, but for whom they were appointed as the relevant People under the Archaeology Act.

Mt Shamrock is atop a ridge between the Toomuc and Deep Creek valleys just north of Pakenham, a town ~40km east of Melbourne’s CBD.  It lies in Bunurong Country.

Mr Steve Compton, on behalf of the Bunurong People, spoke for his Country before a Ministerial Panel considering a proposed quarry extension.

Whitefella law had created complexity. The neighbouring Wurundjeri People were listed as the local Aboriginal community for the area under the Archaeology Act and it was they whose ‘Consent to Disturb’ would be required – not the Bunurong. 

The Bunurong were not recognized.  The Panel noted that legislative boundaries under the Archaeology Act were not necessarily accurate and were at that time under review. 

Mr Compton explained the situation, a situation very common among Aboriginal Peoples throughout Australia in their inter-relationships concerning Country.

There was likely to have been an arrangement for shared use of the Toomuc Valley area.  … (T)he Toomuc Valley has long been recognized as a track used by Indigenous peoples as it provides a connection between the Dandenong Ranges and the sea.’

    

  Image: Toomuc Creek[18]

The Wurundjeri had made no submission before the Panel. However, the Panel wrote to the Wurundjeri and, in due course, the Wurundjeri’s acting CEO addressed the Panel, confirming the Bunurong’s long connection with the subject site.  

The quarry proponent engaged a consultant who produced the usual archaeological survey.  Subsequently, a 1989 survey came to light, with Ms L Smith reporting that ‘all creeks within the area, including Toomuc Creek, were potential locations for archaeological sites. Ms Smith developed a site prediction more for archaeological sites.  The proponent’s consultant concluded that ‘Aboriginal people carried out a range of activities in the area, including travel between coastal region and Dandenong Ranges, as a lookout location and for the quarrying of stone for tools and preparation of food. She suggested that environmental factors such as access to spring water, plant food and stone resources could have influenced Indigenous movements in this region.

Mr Compton outlined that the subject site is a most desirable location for a lookout, with both Port Phillip and Westernport bays being visible.  The Toomuc Creek is the last reasonably un-developed watercourse of significance in the area and it was an area of retreat during extreme cold and periods of drought. Springs would have been flowing for millions of years.  He told the Panel that the Bunurong are keen to pursue ways in which their Indigenous heritage in the Toomuc Valley can be preserved and interested. 

The Panel noted that neither Mr Compton nor the Wurundjeri was able to advise it on ceremonial places. The Panel appeared to be searching for some particularly sacred or spiritually significant element. 

By contrast, Mr Compton told the Panel that:

‘he was arguing for the ‘integrity of the valley’ rather than the ‘integrity of individual sites’.

Kellehers has recently been involved in several cases concerning the Birrarung (Yarra River).          

Again, the search for Indigenous cultural heritage and the contents of a typical acceptable  CHMP invariably focus on archaeological and artefact/object location, along with Indigenous ‘clearance’ for works and development.  The stories of the river and the Wurund’jeri and Bunurong, are routinely omitted.  How do we redress this enormous silence?

      Image: Aboriginal Elder of the Wurund’jeri people Aunty Joy Murphy[19]

Elder, Dr Joy Murphy’s voice rings clear:

“We are the gatherers, and language is an important part of culture still to be gathered.”[20]

KELLEHERS AUSTRALIA

6 July 2021

Download a PDF of this Article HERE.


[1] ‘Victorian Aboriginal Heritage Council’, Aboriginal Cultural Heritage Register – intangible heritage  (Web page) <https://www.aboriginalheritagecouncil.vic.gov.au/taking-care-culture-discussion-paper/aboriginal-cultural-heritage-register-intangible-heritage>.

[2] Murphy, Aunty Joy and Lisa Kennedy, 2016, Welcome to Country, Black Dog Books, Newtown, NSW – shortlisted for NSW Premier’s Literary Awards and NSW Premier’s History Awards 2017 and winner, Environment Award for Children’s Literature, The Wilderness Society.  Murphy, Aunty Joy and Andrew Kelly, Wilam: A Birrurung Story, 2019, Black Dog Books, Newtown, NSW – shortlisted 2020 Childrens’ Book of the Year Award.

[3] Kellehers Australia actively supports the Melbourne Writers’ Festival program for Indigenous writers.

[4] By Gary Vines – Own work, CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=17404643.

[5] ‘Classification Report June 2015: Sunbury Rings Cultural Landscape’, National Trust of Australia (Vic) (Web) <chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://www.trustadvocate.org.au/wp-content/uploads/2018/01/SRCL-Classification-Report-June-2015.pdf>.

[6] ‘Wurundjeri Council’, Management of Wurundjeri Properties & Significant Places (Web page) <https://www.wurundjeri.com.au/services/natural-resource-management/management-of-wurundjeri-properties-significant-places/>.

[7] Oliver Lees, ‘Rare link to Indigenous history’, Star Weekly, Sunbury and Macedon Ranges (Web page) <https://sunburymacedonranges.starweekly.com.au/news/rare-link-to-indigenous-history/>.

[8] Oliver Lees, ‘Rare link to Indigenous history’, Star Weekly, Sunbury and Macedon Ranges (Web page) <https://sunburymacedonranges.starweekly.com.au/news/rare-link-to-indigenous-history/>.

[9] Google Maps 2021, available through: https://goo.gl/maps/RyMi6muurgV7YNBg6 [accessed July 2021].

[10] ‘Wurundjerie Earth Rings’, Historical RagBag, May 21 2018 (web) https://historicalragbag.com/2018/05/21/wurundjeri-rings/>.

[11] Canterbury Hills Pty Ltd v Hume City Council [2015] VCAT 80.

[12] Hume Planning Scheme (cl 43.04-3 schd 7 cl 2.0).

[13] Canterbury Hills Pty Ltd v Hume City Council [2015] VCAT 80 [21].

[14]This Act was repealed on 28 May 2007 by s 195 of the Aboriginal Heritage Act 2006.

[15] Canterbury Hills Pty Ltd v Hume City Council [2015] VCAT 80 [27].

[16] Canterbury Hills Pty Ltd v Hume City Council [2015] VCAT 80 [27].

[17] Canterbury Hills Pty Ltd v Hume City Council [2015] VCAT 80 [29].

[18] ‘Toomuc Creek – Pakenham Walk’, Upper Beaconsfield Community Centre [accessed 6 July 2021] https://www.ubcc.org.au/post/toomuc-creek-walk.

[19] KeynoteworthyAU, ‘The significance of Welcome To Country: why every event should have one’ [accessed 6 July 2021] <https://keynoteworthy.com.au/the-significance-of-welcome-to-country-why-every-event-should-have-one/>.

[20] ‘In Them We Trust’, Aunty Joy Murphy Wandin interviewed by Tabitha Leane, September 2020 < chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://koorieheritagetrust.com.au/wp-content/uploads/2020/09/26.-Essay-Aunty-Joy-Murphy.pdf>.  

Protecting Native Grasses

“Native grasses have got to watch their backs…”[1]

From ‘Native Grasses’: a poem by Jeanine Leane

This Newsflash delves a little further into protections for native grasses.

Native Grass Restoration Project

Image: Native grasses in the Tasmanian Midlands.

The Tasmanian Midlands is an ecologically distinctive and significant Australian landscape, owing to its mountainous surroundings and lower rainfall, which is at the same time one of the most under-protected landscapes in Australia. It is an important location for native temperate grasslands.[2] These native grasslands are generally found on valley floors. It is also home to 32 plant and animal species threatened nationally, and 180 plant and animals species threatened in Tasmania.

Changes and intensifications in farming practices left only 30% of native vegetation remaining, much of it degraded.

The Midlandscapes Project is a landscape scale conservation project within a working landscape designed to protect grassy woodlands, native fauna and temperate grasslands. The Project is a collaboration between Bush Heritage Australia and the Tasmanian Land Conservancy. At its core is the Midlands Conservation Fund, which received private donations exceeding $3.7M since established in 2013.

Land owners who take part in the project are paid a fee for setting aside some of their land for conservation, and an annual payment for meeting conservation targets. The project emphasises co-operation and collaboration, not competition. It works to a clear vision and action plan, offering hope for protection of important native grasses[3].

Victorian Planning Controls

Native grasses fall within the definition of ‘native vegetation’ in Victoria’s planning schemes:

Plants that are indigenous to Victoria, including trees, shrubs, herbs, and grasses[4].

A permit is required to remove, lop or destroy ‘native vegetation’, including indigenous grasses.[5]

Victoria classifies vegetation communities using the Ecological Vegetation Class (EVC) system. The EVC’s geographical distribution and layout helps set Victorian bioregions., the relevant one for grasses is “patch”.  A “patch”, as relevant to grasses is any of:

  1. an area of vegetation where at least 25 per cent of the total perennial understorey plant cover is native;  and
  2. any mapped wetland included in the current wetlands map, available in DELWP systems and tools.[6]

The DELWP are to:

  1. avoid the removal, destruction or lopping of native vegetation;
  2. minimise impacts from the removal, destruction or lopping of native vegetation that cannot be avoided;
  3. provide an offset to compensate for the biodiversity impact if a permit is granted to remove, destroy or lop native vegetation.[7]

The guidelines note that they are not the complete set of requirements:

“Compliance with these guidelines alone does not ensure the meeting of all relevant planning scheme requirements regarding removing native vegetation.”[8]

Generally, when development interacts with native vegetation, two objectives are important:

  1. Ensuring the design responds to the existing site conditions, including landform, soil type, existing vegetation, natural drainage network and local climate; and
  2. Ensuring the design contributes to a sustainable environment. This includes the protection and enhancement of existing eco-systems, provision of habitat for indigenous species, improvement to watercourses and riparian areas and responding to the impact of climate change

Development should respond to existing vegetation in a meaningful way.

Interesting Native Grasses Cases

Conservation Groups

In 2021[9], the Victorian Supreme Court granted standing to Kinglake Friends of the Forest to seek a permanent injunction restraining VicForests from engaging in certain timber harvesting operations in native forests.

Image: A forest in Kinglake National Park.

The Court:

place[d] particular weight on the wildlife spotting nights and forest surveys conducted by Kinglake FF, and the events it organised for its members and other interested people in the forests. It is significant that Kinglake FF has directed considerable effort towards community engagement and education about its “mission” of preserving the State forests of the Central Highlands. It has notified the OCR of a large number of instances of alleged overharvesting by VicForests throughout the Central Highlands.”[10]

The case suggests that where an organisation’s activities depend on the existence of native vegetation, it will have an interest greater than the general public in preserving that vegetation.

Is preventing vegetation removal, a compulsory acquisition?

A 2018 Federal Court[11] decision capped off almost a decade of litigation. One Peter Spencer was prevented from clearing native vegetation on his land by a Native Vegetation Agreement (NVA) between the NSW and Commonwealth governments. He argued that, consequentially, the rights he could exercise over his property, and which are bound up with ownership, were effectively sterilised by the NSW vegetation clearance laws and this amounted to an acquisition of property under section 51(xxxi) of the Constitution, which required compensation on “just terms”.

The Federal Court[12] found that the NVA preventing clearing did not amount to an acquisition.

Unlawful vegetation removal can have multiple consequences

In 2015[13], unlawful native vegetation clearing resulted in a fine. Manningham Council then ordered restoration of the vegetation under s114 PEA. Chief Justice Warren in the Victorian Supreme Court found that PEA did not intend to prohibit further proceedings and that s33(2)(b) of the Infringements Act 2006 expressly acknowledged the possible co-existence of civil proceedings arising out of the same occurrence[14].

DELWP Guidelines

In 2019, Osborn J[15] of the Victorian Supreme Court considered the DELWP Guidelines. He noted that the PEA required regard to factors beyond just the guidelines. He referred to Ss 4, 60 and 84B PEA[16], including the planning objective:

to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity”.

His Honour found that in determining a planning application, it was mandatory to consider:

any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development”.

Multiple plants can form one prosecution

A 2017 South Australian case found that, even if many individual plants were cleared, a single charge could apply[17].

Native Grasses

Protection and restoration of native grasses can be difficult or impossible.

Native grasses do indeed have to ‘watch their backs’, but law provides many protections.

KELLEHERS AUSTRALIA

23 July 2021

Download a PDF of this Article HERE.


[1] Leane, Jeanine, 2020, Native Grasses, https://kellehers.com.au/latest-news/heal-country/ (accessed 21 July 2021)

[2] Fitzsimons, James, Ian Pulsford and Geoff Wescott, eds., Linking Australia’s Landscapes: Lessons and Opportunities from Large-scale Conservation Networks (CSIRO Publishing, June 2013), pp 85-94, 87.

[3] https://www.bushheritage.org.au/places-we-protect/tasmania/midlands (accessed 21 July 2021)

[4] Clause 73.01 Victoria Planning Provisions https://planning-schemes.api.delwp.vic.gov.au/schemes/vpps/73_01.pdf?_ga=2.32863102.1576877253.1627015874-1677249173.1624519559  (accessed 21 July 2021)

[5] Clause 52.17 Victoria Planning Provisions https://planning-schemes.api.delwp.vic.gov.au/schemes/vpps/52_17.pdf?_ga=2.37124064.1576877253.1627015874-1677249173.1624519559 (accessed 17 July 2021).

[6] Ibid.

[7] https://www.environment.vic.gov.au/__data/assets/pdf_file/0021/91146/Guidelines-for-the-removal,-destruction-or-lopping-of-native-vegetation,-2017.pdf p. 4. (accessed 21 July 2021)

[8] Ibid [73].

[9] Kinglake Friends of the Forest (No 4) [2021] VSC 70.

[10] Kinglake Friends of the Forest (No 4) [2021] VSC 70 [54]

[11] Spencer v Commonwealth (2018) 262 FCR 344

[12] In (2015) 240 FCR 282, Mortimer J, at [3], rejected Spencer’s acquisition claim. In (2018) 262 FCR 344, Full Federal Court (Griffiths, Rangiah and Perry JJ), at [253], rejected Spencer’s acquisition claim.

[13] Page v Manningham City Council [2010] VSC 267

[14] Ibid paragraph [54].

[15] Gray v Minister for Energy, Environment and Climate Change [2019] VSC 382

[16] Ibid [66].

[17] Brinkworth v Dendy (2007) 97 SASR 461